Sri B Charanraj S/O Neelakanta ... vs Smt. Pooja Alias Geetha W/O B ...
2023 Latest Caselaw 5756 Kant

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                                               NC: 2023:KHC-D:9105-DB
                                                    MFA No. 101527 of 2023




                              IN THE HIGH COURT OF KARNATAKA,
                                      DHARWAD BENCH

                           DATED THIS THE 18TH DAY OF AUGUST, 2023

                                          PRESENT
                        THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
                                            AND
                            THE HON'BLE MR JUSTICE G BASAVARAJA
                   MISCELLANEOUS FIRST APPEAL NO. 101527 OF 2023 (MC)
                    BETWEEN:

                    SRI B. CHARANRAJ S/O. NEELAKANTA GOUDA,
                    AGE: 32 YEARS, OCC: AGRI. AND BUSINESS,
                    R/O: SHAILGANURU VILLAGE,
                    TQ: SIRUGUPPA, DIST: BALLARI.
                                                               ...APPELLANT
                    (BY SRI MAHANTESH C. KOTTURSHETTAR AND
                        SMT. VIDYAVATI M. KOTTURSHETTAR, ADVOCATES)

                    AND:

                    SMT. POOJA ALIAS GEETHA
                    W/O. B. CHARANRAJ D/O. PAMPANAGOUDA,
                    AGE: 30 YEARS, OCC: HOUSEWIFE,
ROHAN
HADIMANI            R/O: SHAILGANURU VILLAGE,
T                   TQ: SIRUGUPPA, DIST: BALLARI.
                                                              ...RESPONDENT
Digitally signed    (NOTICE SERVED TO RESPONDENT)
by ROHAN
HADIMANI T
Date:
2023.08.22
                         THIS MISCELLANEOUS FIRST APPEAL FILED UNDER
11:00:38 -0700      SECTION 28(3) OF HINDU MARRIAGE ACT, 1955, R/W 19(1)
                    OF THE FAMILY COURT 1984 PRAYING TO SET ASIDE THE
                    JUDGMENT AND DECREE DATED 24/02/2023 PASSED BY THE
                    LEARNED IIND ADDITION SENIOR CIVIL JUDGE BALLARI
                    SITTING AT SIRUGUPPA IN MAT NO. 14/2019 AND ALLOW THE
                    APPEAL FILED BY THE APPELLANT IN THE INTEREST OF
                    JUSTICE.
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                                 NC: 2023:KHC-D:9105-DB
                                       MFA No. 101527 of 2023




    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, S.R.
KRISHNA KUMAR, J., DELIVERED THE FOLLOWING:

                            JUDGMENT

This appeal by the petitioner in MAT.No.14/2019 on

the file of II Additional Senior Civil Judge, Ballari sitting at

Siruguppa (for short, 'the Trial Court') is directed against

the impugned Judgment and Decree passed by the Trial

Court whereby the said petition filed by the appellant/

husband seeking divorce against the respondent/wife by

dissolution of their marriage solemnized on 21.05.2017 on

the ground of cruelty and desertion was rejected by the

Trial Court.

2. The material on record discloses that the marriage

of the appellant and respondent having been solemnized

on 21.05.2017, the appellant/husband instituted the

aforesaid petition contending that there was no

consummation of their marriage and apart from treating

the appellant/husband with cruelty, respondent/wife also

deserted him for a period of more than two years prior to

filing of the petition, as a result of which, the appellant

NC: 2023:KHC-D:9105-DB MFA No. 101527 of 2023

was constrained to file the said petition before the Trial

Court.

3. The respondent having entered appearance

through her counsel did not contest the petition and

pursuant to the appellant examining himself as P.W.1 and

one another witness as P.W.2 and marking four documents

as Ex.P.1 to 4, the trial court has proceeded to pass the

impugned Judgment and Decree dismissing the petition,

aggrieved by which, the appellant is before this Court by

way of the present appeal.

4. The respondent having been served with notice of

this appeal, she has chosen to remain unrepresented and

has not contested this appeal.

5. A perusal of the material on record, including the

Judgment and Decree passed by the Trial Court will

indicate that the Trial Court has failed to consider and

appreciate the un-impeached, un-controverted and

unchallenged pleadings and evidence of the appellant,

which conclusively establishes that the respondent was

guilty of desertion and cruelty. Under these circumstances,

NC: 2023:KHC-D:9105-DB MFA No. 101527 of 2023

we are of the considered opinion that the Trial Court has

committed an error in dismissing the petition filed by the

appellant and as such the impugned order deserves to be

set aside and the petition filed by the appellant deserves

to be allowed. In result, we pass the following :

ORDER

(i) Appeal is hereby allowed.

(ii) The impugned Judgment and Decree dated 24.02.2022 passed in MAT.No.14/ 2019 by the II Additional Senior Civil Judge, Ballari sitting at Siruguppa is hereby set aside.

      (iii)     The      marriage    dated      21.05.2017
                solemnized    between     the    appellant/
                husband      and     respondent/wife     is
                dissolved by a decree of divorce.
      (iv)      Draw decree accordingly.



                                         Sd/-
                                        JUDGE



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                                        JUDGE